AN ACT Relating to the Child Fatality and Near Fatality External Review Panel

UNOFFICIAL COPY AS OF 10/20/1813 REG. SESS.13 RS BR 561

AN ACT relating to the child fatality and near fatality external review panel.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

SECTION 1. A NEW SECTION OF KRS CHAPTER 620 IS CREATED TO READ AS FOLLOWS:

(1)A child fatality and near fatality external review panel is hereby created and established for the purpose of conducting comprehensive reviews of child fatalities and near fatalities determined by the Department for Community Based Services to be a result of abuse or neglect. The panel shall be attached to the Justice and Public Safety Cabinet for staff and administrative purposes.

(2)The child fatality and near fatality external review panel shall be composed of the following ex officio nonvoting members and voting members:

(a)The chairperson of the House Health and Welfare Committee of the Kentucky General Assembly, who shall be an ex officio nonvoting member;

(b)The chairperson of the Senate Health and Welfare Committee of the Kentucky General Assembly, who shall be an ex officio nonvoting member;

(c)The commissioner of the Department for Community Based Services, who shall be an ex officio nonvoting member;

(d)A judge selected by the Chief Justice of the Kentucky Supreme Court, who shall be an ex officio nonvoting member;

(e)A pediatrician from the University of Kentucky’s Department of Pediatrics who provides health care services to children served by the Commission for Children with Special Health Care Needs to be selected by the Attorney General from a list of three (3) names provided by the chairperson of the Board of the Commission on Children with Special Health Care Needs;

(f)A pediatrician from the University of Louisville’s Department of Pediatrics who is licensed and experienced in forensic medicine relating to child abuse and neglect to be appointed by the Attorney General from a list of three (3) names provided by the Dean of the University of Louisville School of Medicine;

(g)The State Medical Examiner or designee;

(h)A court-appointed special advocate (CASA) program director to be selected by the Attorney General from a list of three (3) names provided by the Kentucky CASA Association;

(i)A peace officer with experience investigating child abuse and neglect fatalities and near fatalities to be selected by the Attorney General from a list of three (3) names provided by the Commissioner of the Kentucky State Police;

(j)A representative from Prevent Child Abuse Kentucky, Inc. to be selected by the Attorney General from a list of three (3) names provided by the president of the Prevent Child Abuse Kentucky board of directors;

(k)A practicing local prosecutor to be selected by the Attorney General;

(l)The executive director of the Kentucky Domestic Violence Association or the executive director's designee;

(m)The chairperson of the State Child Fatality Review Team established in accordance with KRS 211.684;

(n)A practicing social work clinician to be selected by the Attorney General from a list of three (3) names provided by the Board of Social Work;

(o)A practicing addiction counselor to be selected by the Attorney General from a list of three (3) names provided by the Kentucky Association of Addiction Professionals;

(p)A representative from the Family Resource and Youth Service Centers to be selected by the Attorney General from a list of three (3) names submitted by the Cabinet for Health and Family Services; and

(q)An at-large representative who shall serve as chairperson to be selected by the Attorney General.

(3)Members appointed shall serve a term of two (2) years. Vacancies in the membership of the panel shall be filled in the same manner as the original appointments. If a member is absent from two (2) or more consecutive, regularly scheduled meetings, the member shall be considered to have resigned and shall be replaced with a new member in the same manner as the original appointment.

(4)The panel shall meet at least quarterly and may meet upon the call of the chairperson of the panel.

(5)Members of the panel shall receive no compensation for their duties related to the panel, but may be reimbursed for expenses incurred in accordance with state guidelines and administrative regulations.

(6)(a)Upon request, the panel shall have access to any information and records from the Department for Community Based Services or any agency, organization, or entity involved with the child subject to the fatality or near fatality.

(b)The panel may seek the advice of experts, such as persons specializing in the fields of psychiatric and forensic medicine, nursing, psychology, social work, education, law enforcement, family law, or other related fields, if the facts of a case warrant additional expertise.

(c)A public agency shall make information and records requested by the panel available within forty-five (45) days of receiving the request.

(7)In performing its duties, the child fatality and near fatality external review panel shall:

(a)Analyze the medical, psychosocial, and legal circumstances of the child subject to the child fatality or near fatality to identify conditions that contributed to the child’s death or serious injury;

(b)Recommend improvements to the Cabinet for Health and Family Services, the Department for Community Based Services, and any other public or private agency or entity relating to policy, practice, training, or other protections for children; and

(c)Publish an annual report of case reviews, findings, and recommendations to be submitted to the Governor, the Secretary of the Cabinet for Health and Family Services, the Chief Justice of the Supreme Court, and the General Assembly. Reports shall be published in a manner that does not disclose the identity of an individual child or family who is subject to the panel’s review.

(8)Information and records that are confidential under state or federal law and are provided to the child fatality and near fatality external review panel by the Cabinet for Health and Family Services, the Department for Community Based Services, or any agency, organization, or entity for review shall not become the information and records of the panel and shall not lose their confidentiality by virtue of the panel’s access to the information and records. Information and records provided to the panel for review shall be exempt from the Kentucky Open Records Act, KRS 61.870 to 61.884.

(9)The portions of the child fatality and near fatality external review panel meetings during which an individual child fatality or near fatality case is reviewed or discussed by panel members shall be closed to the public. At the conclusion of the panel’s examination, all records involving an individual case shall be returned to the department, agency, organization, or entity that provided the records.

(10)Each member of the child fatality and near fatality external review panel, any person attending a closed panel meeting, and any person presenting information or records on an individual child fatality or near fatality at a closed panel meeting shall execute a sworn statement of confidentiality of the information, records, discussions, and opinions disclosed during the case review and examination.

(11)A member of the panel shall not be held liable for any civil damages as a result of any action taken or omitted in the performance of the member’s duties pursuant to this section and Section 3 of this Act, except for violations of subsections (8), (9), or (10) of this section.

Section 2. KRS 620.020 is amended to read as follows:

The definitions in KRS Chapter 600 shall apply to this chapter. In addition, as used in this chapter, unless the context requires otherwise:

(1)"Case permanency plan" means a document identifying decisions made by the cabinet, for both the biological family and the child, concerning action which needs to be taken to assure that the child in foster care expeditiously obtains a permanent home;

(2)"Case progress report" means a written record of goals that have been achieved in the case of a child;

(3)"Case record" means a cabinet file of specific documents and a running record of activities pertaining to the child;

(4)"Children's advocacy center" means an agency that advocates on behalf of children alleged to have been abused; that assists in the coordination of the investigation of child abuse by providing a location for forensic interviews and medical examinations, and by promoting the coordination of services for children alleged to have been abused; and that provides, directly or by formalized agreements, services that include, but are not limited to, forensic interviews, medical examinations, mental health and related support services, court advocacy, consultation, training, and staffing of multidisciplinary teams;

(5)"Fatality" means the death of a child due to abuse or neglect.

(6)"Foster care" means the provision of temporary twenty-four (24) hour care for a child for a planned period of time when the child is:

(a)Removed from his parents or person exercising custodial control or supervision and subsequently placed in the custody of the cabinet; and

(b)Placed in a foster home or private child-caring facility or child-placing agency but remains under the supervision of the cabinet;

(7)[(6)]"Local citizen foster care review board" means a citizen board which provides periodic permanency reviews of children placed in the custody of the cabinet by a court order of temporary custody or commitment under this chapter;

(8)[(7)]"Multidisciplinary teams" means local teams operating under protocols governing roles, responsibilities, and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse pursuant to KRS 431.600;

(9)"Near fatality" has the same meaning as in KRS 600.020;

(10)[(8)]"Pediatric abusive head trauma" means the various injuries or conditions that may result following the vigorous shaking, slamming, or impacting the head of an infant or young child. These injuries or conditions, also known as pediatric acquired abusive head trauma, have in the past been called "Shaken Baby Syndrome" or "Shaken Infant Syndrome." Pediatric abusive head trauma injuries or conditions have included but are not limited to the following:

(a)Irreversible brain damage;

(b)Blindness;

(c)Retinal hemorrhage;

(d)Eye damage;

(e)Cerebral palsy;

(f)Hearing loss;

(g)Spinal cord injury;

(h)Paralysis;

(i)Seizures;

(j)Learning disability;

(k)Death;

(l)Central nervous system injury as evidenced by central nervous system hemorrhaging;

(m)Closed head injury;

(n)Rib fracture; and

(o)Subdural hematoma;

(11)[(9)]"Permanence" means a relationship between a child and an adult which is intended to last a lifetime, providing commitment and continuity in the child's relationships and a sense of belonging;

(12)[(10)]"Preventive services" means those services which are designed to help maintain and strengthen the family unit by preventing or eliminating the need for removal of children from the family;

(13)[(11)]"Reasonable efforts" means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home;

(14)[(12)]"Reunification services" means remedial and preventive services which are designed to strengthen the family unit, to secure reunification of the family and child where appropriate, as quickly as practicable, and to prevent the future removal of the child from the family; and

(15)[(13)]"State citizen foster care review board" means a board created by KRS 620.310.

Section 3. KRS 620.050 is amended to read as follows:

(1)Anyone acting upon reasonable cause in the making of a report or acting under KRS 620.030 to 620.050 in good faith shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report or action. However, any person who knowingly makes a false report and does so with malice shall be guilty of a Class A misdemeanor.

(2)Any employee or designated agent of a children's advocacy center shall be immune from any civil liability arising from performance within the scope of the person's duties as provided in KRS 620.030 to 620.050. Any such person shall have the same immunity with respect to participation in any judicial proceeding. Nothing in this subsection shall limit liability for negligence. Upon the request of an employee or designated agent of a children's advocacy center, the Attorney General shall provide for the defense of any civil action brought against the employee or designated agent as provided under KRS 12.211 to 12.215.

(3)Neither the husband-wife nor any professional-client/patient privilege, except the attorney-client and clergy-penitent privilege, shall be a ground for refusing to report under this section or for excluding evidence regarding a dependent, neglected, or abused child or the cause thereof, in any judicial proceedings resulting from a report pursuant to this section. This subsection shall also apply in any criminal proceeding in District or Circuit Court regarding a dependent, neglected, or abused child.

(4)Upon receipt of a report of an abused, neglected, or dependent child pursuant to this chapter, the cabinet as the designated agency or its delegated representative shall initiate a prompt investigation or assessment of family needs, take necessary action, and shall offer protective services toward safeguarding the welfare of the child. The cabinet shall work toward preventing further dependency, neglect, or abuse of the child or any other child under the same care, and preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care.

(5)The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter, except for those records provided for in subsection (6) of this section, shall not be divulged to anyone except:

(a)Persons suspected of causing dependency, neglect, or abuse;

(b)The custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused;

(c)Persons within the cabinet with a legitimate interest or responsibility related to the case;

(d)Other medical, psychological, educational, or social service agencies, child care administrators, corrections personnel, or law enforcement agencies, including the county attorney's office, the coroner, and the local child fatality response team, that have a legitimate interest in the case;

(e)A noncustodial parent when the dependency, neglect, or abuse is substantiated;

(f)Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.600;

(g)Employees or designated agents of a children's advocacy center;[ or]

(h)Those persons so authorized by court order; or

(i)The child fatality and near fatality external review panel established by Section 1 of this Act.

(6)(a)Files, reports, notes, photographs, records, electronic and other communications, and working papers used or developed by a children's advocacy center in providing services under this chapter are confidential and shall not be disclosed except to the following persons:

1.Staff employed by the cabinet, law enforcement officers, and Commonwealth's and county attorneys who are directly involved in the investigation or prosecution of the case;

2.Medical and mental health professionals listed by name in a release of information signed by the guardian of the child, provided that the information shared is limited to that necessary to promote the physical or psychological health of the child or to treat the child for abuse-related symptoms;[ and]

3.The court and those persons so authorized by a court order; and

4.The child fatality and near fatality external review panel established by Section 1 of this Act.

(b)The provisions of this subsection shall not be construed as to contravene the Rules of Criminal Procedure relating to discovery.

(7)Nothing in this section shall prohibit a parent or guardian from accessing records for his or her child providing that the parent or guardian is not currently under investigation by a law enforcement agency or the cabinet relating to the abuse of a child.

(8)Nothing in this section shall prohibit employees or designated agents of a children's advocacy center from disclosing information during a multidisciplinary team review of a child sexual abuse case as set forth under KRS 620.040. Persons receiving this information shall sign a confidentiality statement consistent with statutory prohibitions on disclosure of this information.

(9)Employees or designated agents of a children's advocacy center may confirm to another children's advocacy center that a child has been seen for services. If an information release has been signed by the guardian of the child, a children's advocacy center may disclose relevant information to another children's advocacy center.

(10)(a)An interview of a child recorded at a children's advocacy center shall not be duplicated, except that the Commonwealth's or county attorney prosecuting the case may:

1.Make and retain one (1) copy of the interview; and

2.Make one (1) copy for the defendant's counsel that the defendant's counsel shall not duplicate.

(b)The defendant's counsel shall file the copy with the court clerk at the close of the case.

(c)Unless objected to by the victim or victims, the court, on its own motion, or on motion of the attorney for the Commonwealth shall order all recorded interviews that are introduced into evidence or are in the possession of the children's advocacy center, law enforcement, the prosecution, or the court to be sealed.

(d)The provisions of this subsection shall not be construed as to contravene the Rules of Criminal Procedure relating to discovery.

(11)Identifying information concerning the individual initiating the report under KRS 620.030 shall not be disclosed except:

(a)To law enforcement officials that have a legitimate interest in the case;

(b)To the agency designated by the cabinet to investigate or assess the report;

(c)To members of multidisciplinary teams as defined by KRS 620.020 that operated under KRS 431.600;[ or]

(d)Under a court order, after the court has conducted an in camera review of the record of the state related to the report and has found reasonable cause to believe that the reporter knowingly made a false report; or

(e)The child fatality and near fatality external review panel established by Section 1 of this Act.

(12)(a)Information shall[may] be publicly disclosed by the cabinet in a case where child abuse or neglect has resulted in a child fatality or near fatality in accordance with 42 U.S.C. sec. 5106a(b):